Supporting Unaccompanied
Children in GA
Special Immigrant Juvenile Status:The Intersection of State Child
Welfare Law & Immigration Law
Frances McBrayer, Catholic Charities AtlantaWillis Miller, Catholic Charities Atlanta
Christina Iturralde Thomas, Kids in Need of Defense
November 28, 2017
Identifying the Current Immigration Status of a Child
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Identifying the Current Immigration Status
• Child was not born in the US & lacks Residency, Citizenship, or Visa.
• WARNING: Do not try to determine this alone if you are not an immigration lawyer, but here are some considerations:
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Children who have been in the United States for many years:
Children who have recently arrived in the US:
• Some may have Deferred Action for Childhood Arrivals (DACA) (expiring)
• May have been undetected by officials at entry into the US
• May have overstayed Visa/Had permission to enter the US
• May have ongoing immigration court proceedings or an order of deportation
• May have an immigration application pending
• Accompanied minors – usually classified under parent’s case as Adults with Children or AWC’s for immigration
• Undetected by officials at entry into the US and since arrival
• Overstayed Visa/Had permission to enter the US
• Unaccompanied Children*
Why does this matter?
• The child you are working with may have additional immigration needs that could overlap or may be affected by the child’s proceedings in the DFCS proceedings/state/county courts.
• To apply a holistic approach to work with the child and to meet the ethical obligations of our professions.
• To protect the child’s rights.
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The U.S. government defines an Unaccompanied Alien Child (UAC) as:• A child who at the time of apprehension has no lawful
immigration status, is under 18 years of age, and has no parent or legal guardian in the U.S. or no parent is available to provide care and physical custody.
• Homeland Security Act of 2002, 107th U.S.C. §462.2 (2002)
Who Are Unaccompanied Children?
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Snapshot of our Child Clients
• Age:
– Range: 2-17.5
– Average: 14.5
• Gender:
– 2/3 boys, 1/3 girls
• National Origin:
– El Salvador, Guatemala, Honduras
• Language:
– Spanish, sometimes indigenous languages
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• Why?
• Where?
• How?
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Unaccompanied Children Fleeing
Why are they coming?• Flee community violence
• Escape poverty and hunger
• Escape situations of family breakdown, abuse, abandonment, and/or neglect
• Some are seeking reunification with family;
• Others access to an education, or physical, financial, or psychological stability.
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Where are they coming from?
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Mexico3%
Guatemala37%
El Salvador 34%
Honduras21%
Other2%
FY 2016 Countries of Origin Source ORR/DCS
How do they get here?
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The Numbers: October 2011 - present
Total UAC’s Apprehended at the Border
Source: HHS, available at https://www.acf.hhs.gov/orr/programs/ucs/state-by-
state-uc-placed-sponsors
Children Needing Representation Regionally
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UACs Released by State
FY 2014 FY 2015 FY 2016 FY 2017 (Oct-Sept)
Georgia 2,047 1,028 1,735 1,345
Alabama 786 808 870 608
Source: HHS, available at
http://www.acf.hhs.gov/programs/orr/programs/ucs/state-by-state-uc-placed-
sponsors
What happens when a child is apprehended?
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Apprehension: detained and
screened at border by CBP
Designation of UAC Status
Placement at ORR facility
Immigration removal
proceedings initiated
Assessment: intake, medical
exam, psych eval, services plan
Reunification process: sponsor identified (usually family member)
Release: Child sent to live with
sponsor
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Focus on Special Immigrant Juvenile Status (SIJS)
8 U.S.C. § 1101(a)(27)(J), 8 CFR 204.11
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SIJS: Eligibility Criteria
• Unmarried;• Under age 21 (but state law age
limitations)• Dependent on juvenile court or placed in
custody, in accordance with state law• Not viable to reunify with one or both
parent(s) because of abuse, abandonment, neglect, or similar maltreatment as defined in state law
• Not in best interest to return to country of origin
(See INA 101(a)(27)(J) and TVPRA 235(d)(1))
The Road to Obtaining Permanent Residence Through SIJS
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Step 1: Juvenile Court
Seek JXN of state/juvenile court;
seek dependency order or order of
custody
Obtain SIJS predicate order
w/findings
Step 2: SIJS PETITION
Submit form I-360 and predicate order to USCIS
Approval of I-360 Petition
Step 3: Adjustment of Status
Application
RECENT CHANGES Terminate/Admin. Close Immigration
Proceedings
Submit form I-485 to USCIS and
attend interview when appropriate
Step One: Juvenile Court
Is there a basis for juvenile
court jurisdiction?
If yes, lawyer may proceed to
filing case!
If no, then child will not be SIJS
eligible.*
Types of Cases- Dependency – Most Common
in GA- Guardianship*- Custody* - Modification of Prior Order*- Children in Need of Services
(CHINS)*- Registration of Foreign Custody
Order* - Delinquency* - Adoption*
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***There are a growing number of practitioners in Georgia who have successfully gone before
other courts such as the Superior Court, Probate Court which are courts that have jurisdiction
over juvenile and/or custody issues, to attain a predicate order.
What law is important?
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• Immigration and Nationality Act § 101(a)(27)(J), as amended by the Trafficking Victims Protection and Reauthorization Act (TVPRA)
• State code sections governing dependency, custody, or guardianship
– State code sections defining abuse, abandonment and/or neglect
– State code sections outlining the best interests of the child (in your relevant proceeding)
• State procedural rules governing notice and service
Focus: Georgia Dependency –Primary Vehicle for SIJS Findings
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OCGA § 15 -11-2(22) – Definition of a DEPENDENT CHILD:
• A child who
– has been abused or neglected and is in need of the protection of the court;
– has been placed for care or adoption in violation of law; or
– is without his or her parent, guardian, or legal custodian.
Abuse
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(A) Any non-accidental physical injury or physical injury which is inconsistent with the explanation given for it suffered by a child as the result of the acts or omissions of a person responsible for the care of a child;(B) Emotional abuse;(C) Sexual abuse or sexual exploitation;(D) Prenatal abuse; or(E) The commission of an act of family violence as defined in Code Section 19-13-1 in the presence of a child. An act includes a single act, multiple acts, or a continuing course of conduct. As used in this subparagraph, the term "presence" means physically present or able to see or hear.– OCGA § 15 -11-2 (2)
Abandonment
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(1) "any conduct on the part of a parent, guardian, or legal custodian showing an intent to forgo parental duties or relinquish parental claims. Evidenced by:(A) Failure, for a period of at least six months, to communicatemeaningfully with a child;(B) Failure, for a period of at least six months, to maintain regular visitation with a child;(C) Leaving a child with another person without provision for his or her support for a period of at least six months;(D) Failure… to participate in any court ordered plan or program designed to reunite … with his or her child;…
– OCGA § 15 -11-2 (1)
Abandonment (cont.)
(E) Leaving a child without affording means of identifying such child or his or her parent, guardian, or legal custodian and:
– (i) The identity of such child's parent, guardian, or legal custodian cannot be ascertained despite diligent searching; and
– (ii) A parent, guardian, or legal custodian has not come forward to claim such child within three months following the finding of such child;
(F) Being absent from the home of his or her child for a period of time that creates a substantial risk of serious harm to a child left in the home;
(G) Failure to respond, for a period of at least six months, to notice of child protective proceedings; or
(H) Any other conduct indicating an intent to forgo parental duties or relinquish parental claims.
OCGA § 15 -11-2 (1)
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Neglect
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(A) The failure to provide proper parental care or control, subsistence, education as required by law, or other care or control necessary for a child's physical, mental, or emotional health or morals;
(B) The failure to provide a child with adequate supervision necessary for such child's well-being; or
(C) The abandonment of a child by his or her parent, guardian, or legal custodian.
– OCGA § 15 -11-2 (48)
Special Considerations when Working with Unaccompanied
Minors
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Working with Unaccompanied Minors
Immigrants
Trauma Survivors
Children
Trauma:
• Abuse by past caretakers
• Witnessing violence in the community
• Witnessing violence during the journey to the US
Uncertainty of placement:
• Children may need to return to their country of origin due to immigration proceedings
• Sponsor may be detained or deported
Special Considerations
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Impact of Family Separation:
• Feelings of abandonment
• Accepting parental authority
• Externalize the emotional trauma
• Reconciling child’s current developmental stage with the stage the child was in when parent left
Special Considerations
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• Assistance with school enrollment
• Assistance navigating community resources
• Low-cost medical care
• Mental health services
• Post-18 Planning
• Independent Living Skills
Examples of Service Needs
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• Filing Change of Address/Change of Venue
• Understanding the Immigration Court
• Pro-bono immigration legal services
• Legal Guardianship
• Undocumented children do not qualify for state or federal benefits in Georgia
• Limited availability of pro-bono services
• Interrupted education
• Language barriers
• Sponsor limitations
˚ Rigid work schedule/Financial responsibilities in U.S. and in country of origin
˚ Multiple children in home
˚ Lack of transportation/ability to drive
˚ Language and education barriers
Barriers to Accessing Social Services
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Resources
• Mixed status families may qualify for benefits for U.S. born children
• Search pro-bono or low-bono service providers in your area
– Legal
– Health and Mental Health
• Families CPS may qualify for some counseling services as a result of an open CPS case
• Discuss creative transportation options
• Look into support and resources for children at school
Q & A
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